Question: I am a manager in a medium-sized retailer that has locations and employees in 16 states. The company maintains a social media policy, which was recently updated. Last week, I noticed that one of our employees posted some pretty nasty things about the company on Twitter. She accused the company of not treating employees fairly because some had to work on days when others did not. Perhaps worse, in response to customers who were praising the company’s products and services, she basically called the company cheap by saying it did not provide good pay or benefits. I have not noticed any reaction from other employees to the tweets, but I am worried they will hurt employee morale and possibly drive away customers. Is there anything I should consider before disciplining the employee who tweeted these things?

Answer: By Rebecca Bernhard, Jillian Kornblatt, and Steve Curry

Rebecca Bernhard

Jillian Kornblatt

Steven W. Curry

Employees have increasingly voiced concerns regarding their employment on social media, often including specific statements about their employers. For example, as previously discussed on this blog, an employee’s Facebook post related to wages or working conditions, combined with other employees’ Facebook comments or “likes” of that post, can constitute protected concerted activity under the National Labor Relations Act (the NLRA). Now, the National Labor Relations Board (NLRB) has gone one step further, finding that an employee’s tweets regarding wages and working conditions were protected activity even without a response from a coworker. See Chipotle Servs. LLC, N.L.R.B. Case No. 04-CA-147314 (Decided March 14, 2016).

In Chipotle, an employee of the Chipotle Mexican Grill located in Havertown, Pennsylvania, took to Twitter to discuss various concerns he had with his employer. In one post, the employee voiced concern about having to work on a snow day when certain other workers were off and public transportation was shut down. Later, in response to a customer who tweeted “Free chipotle is the best thanks,” the employee tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Chipotle’s national social media strategist subsequently contacted the regional manager for the Havertown location, requesting that he ask the employee to delete the tweets and discuss the company’s social media code of conduct. Following a meeting with the regional manager, the employee agreed to remove the tweets.

The Administrative Law Judge (ALJ) held that the employee’s tweets constituted “concerted activity” under Section 7 because the tweets concerned “[w]ages and working conditions,” specifically being required to work on snow days and pay rates, and “[t]he issues raised in [the employee’s] tweets are not purely individual concerns.” The ALJ explained that the tweets, while directed toward specific individuals, were “visible to others” and “had the purpose of educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific.” These were not tweets relating to “purely individual concerns,” but rather “issues common to many of Chipotle’s hourly workers nationwide, and certainly to those at the Havertown restaurant.”

Unlike other cases where a social media post constituted concerted activity, no other Chipotle employee expressed agreement with or otherwise even reacted to the original tweets in this case. Similar to a Facebook comment or “like,” a coworker could have retweeted or “liked” the employee’s tweets, demonstrating approval of the employee’s concerns or advancing the dialogue. But no Chipotle employee acted in any way in response to the employee’s tweets, other than managers asking him to delete them.

The ALJ explained that, although the employee “did not consult with coworkers before posting these tweets” and no coworkers apparently responded to the employee’s concerns, “[i]t is not necessary that two or more individuals act together in order for the activity to be concerted.” Concerted activity includes “individual activity where ‘individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.’” The forum in which the activity is undertaken is irrelevant in determining whether the activity was for the “mutual aid or protection” of other employees. The analysis considers only whether there is a link between the activity and matters concerning the workplace or employees’ interests as employees.

The ALJ further held that Chipotle violated the NLRA by prohibiting the employee from engaging in future concerted activity. Although Chipotle’s managers did not explicitly tell the employee not to post similar tweets in the future, the ALJ found that their conduct implied just that. The regional manager gave the employee a copy of Chipotle’s social media policy and asked him to delete specific tweets, implying that those tweets contravened the policy and that similar content should not be posted in the future. Having found that the deleted tweets were concerted activity, the ALJ concluded that Chipotle’s managers “implicitly prohibited [the employee] from posting similar tweets in the future and thus prohibited him from engaging in protected concerted activity.”

Lastly, the ALJ quickly dismissed Chipotle’s assertion that the employee’s tweets were disparaging of the company’s products and business or promoted a competitor. In one of his tweets, the employee referenced Chipotle’s $2 charge for guacamole and noted that a competitor (Qdoba) did not charge extra for guacamole. The ALJ disagreed that any of the employee’s tweets lost protection under the NLRA, finding that the “tweets are simply statements of fact and do not attack the quality of Chipotle’s food.”

This decision and other recent NLRB guidance show an increased—and continuing—focus on protecting employees’ Section 7 rights in a variety of contexts. Whether on the factory floor or Twitter, the NLRB will protect employees’ rights to engage in concerted activity. If an employer is considering an adverse employment action for reasons unrelated to the an employee’s statements, the employer should ensure that its true reasons are clearly articulated and documented, limiting potential arguments that the adverse action was instead retaliation for the employee’s exercise of Section 7 protected rights.

A social media policy is a good start towards limiting the potential for employee’s to express non-protected statements on public sites like Facebook or Twitter. Be aware, however, that maintaining a policy that violates the NLRA may subject the employer to another claim—even if the policy has been replaced by a lawful one. In Chipotle, the social media strategist forwarded a copy of the then-outdated policy, which the regional manager presented to the employee when asking that he delete the tweets. Even though the parties agreed that Chipotle’s new policy was lawful, the ALJ held the company maintained an unlawful policy because the old policy “formed the basis for [the social media strategist] requesting [the regional manager] to meet with [the employee], it was the policy given to [the employee] at that meeting, and it was the basis for [the regional manager’s] request that [the employee] remove his tweets.” To avoid this result, the employer must be careful in drafting its social media policy to comply with the NLRA’s requirements (a topic covered previously on this blog here, here, and here) and then be consistent with using the most recent version if there are multiple.

In addition to implementing a social media policy, an employer may still take action based on other problematic content in an employee’s statement such as — revealing trade secrets, violating HIPAA rules, or harassing a colleague— but employers should take care to document what specific content forms the basis of their employment decision. Employers may also consider offering employees alternative, private channels to voice their workplace complaints to management such as Slack or Yammer, reducing the potential that an employee will vent frustrations in more public forums like Facebook, Twitter, or other social media sites.

Share this:

Related

About Rebecca Bernhard

Rebecca's experience spans traditional labor and employment, immigration, and federal contract compliance and audits. She supports clients with their corporate transactions, advising on all aspects of labor and employment diligence,......[more]

About Jillian Kornblatt

Jillian is a Partner in Dorsey’s Labor & Employment group, where she focuses her practice on employment litigation and advice, and on labor law issues. Jillian assists employers in investigating......[more]

About Dorsey’s Labor & Employment Practice:

Dorsey is a business law firm with more than 550 attorneys across the United States, Canada, Europe and Asia. Our lawyers regularly handle every sort of employment matter, litigated and non-litigated. We have extensive, successful trial experience (including class and collective actions), as well as an outstanding record for obtaining summary judgments. Dorsey also has broad experience in advising, counseling, compliance and development, policy handbook review, training and other measures that can greatly reduce the likelihood of litigation or governmental enforcement actions.